I read the article by Earthrowl et al
(
2003) with interest. The issue
of providing treatment to prisoners, who are frequently incapable of
consenting, will not be unfamiliar to psychiatrists providing mental health
care in these establishments. Although the authors correctly state that there
is no legislative framework for providing treatment for mental disorders in
prisons, this may be slightly disingenuous. The current legislative framework
that provides for the treatment of mental disorders, namely the Mental Health
Act 1983, is clear that prison health-care wings are not hospitals. It follows
that any treatment that is administered forcibly must be consistent with
common law. Separate legislation is therefore unnecessary.

They also appear to have overlooked recent guidance on this matter. The
Department of Health (
2002) in
collaboration with the Prison Service has set out, in detail, good practice
guidelines for providing care to both competent and incapacitated adult
prisoners. These outline circumstances in which prisoners who lack capacity
can receive treatment. We have found this very helpful in developing protocols
for treatment in the prisons we visit.

The development of policies and protocols will assist in establishing who,
when and in which circumstances incapacitated prisoners may be treated and
allow us to be more confident when making these difficult decisions.

Authors' reply

We fail to understand Dr Qurashi's comment that ‘separate legislation
is therefore unnecessary’. Our paper sets out a policy for
providing treatment to people with mental disorder based on common law
(
Earthrowl et al,
2003). We are not proposing separate legislation.

Dr Qurashi also mentions that we appear to have overlooked recent guidance
from the Department of Health
(
2002). The Department of
Health guidelines were produced in July 2002, after our paper was accepted for
publication.

These guidelines provide guidance on establishing capacity but, in our
opinion, they do not tackle the practical issues relating to the management of
prisoners with mental disorder in any great detail, they do not deal with the
ethical issues surrounding the provision of an equivalent service in prisons
adequately and detailed guidance on making a concerted effort to obtain
treatment under the Mental Health Act in hospital before proceeding with
treatment under common law is lacking. In our view, these are serious
omissions.